Custody and contact with a child after separation

Who has custody after separation?

Parents who are married to each other have joint custody of their child (PKS § 117 lg 1) [4]. If the parents were not married when the child was born, they have joint custody unless, when making the declarations acknowledging paternity, they expressed the wish to leave custody to only one parent (PKS § 117 lg 2) [4].

Custody (hooldusõigus) covers the right to care for the child's person and property and to decide matters concerning the child (PKS § 116 lg 2) [5]. Care for the child's person includes deciding where the child stays (PKS § 124 lg 1) [6].

When the parents live apart, decisions are divided as follows:

• Important matters are decided jointly by the parents with joint custody (PKS § 145 lg 1) [1].
• Everyday matters are decided alone by the parent with custody with whom the child permanently lives with the other parent's consent or under a court decision. This is generally a routine decision „mis esineb sageli ja mis lapse arengut püsivalt ei mõjuta“ (translation: which occurs often and does not have a lasting effect on the child's development; PKS § 145 lg 2) [1].
• If the child stays with the other parent with consent or under a court decision, that parent decides the everyday care matters (PKS § 145 lg 3) [1].

Where does the child live and who decides?

If the parents live apart, a minor's residence is the residence of the parent with whom the minor lives (General Part of the Civil Code Act, tsiviilseadustiku üldosa seadus, TsÜS § 15 lg 1) [7]. If the parents cannot agree on where the child stays, the court can be asked on two grounds:

• Decision-making right in one matter. If the parents cannot agree on a matter important to the child, the court may, at a parent's request, give one parent the right to decide that matter (PKS § 119) [8]. According to the Supreme Court (Riigikohus), this applies above all to a one-off important question (RK 2-21-233/69) [9].
• Partly ending joint custody. The court may end joint custody only as regards deciding where the child stays and give one parent sole custody in that respect; the application can be decided under either PKS § 119 or § 137, but not under both at once (RK 3-2-1-159-15) [10].

Sole custody as regards where the child stays also covers deciding where the child travels (RK 2-18-15686/183) [11].

When does one parent get sole custody?

If parents with joint custody live permanently apart or for another reason no longer wish to exercise custody jointly, either parent may ask the court in non-contentious (hagita) proceedings to transfer custody to them partly or fully; the court may also resolve this dispute in divorce proceedings (PKS § 137 lg 1) [2]. The application is not granted if a child of at least 14 years objects to the transfer or if there is reason to assume that sole custody is not in line with the child's interests (PKS § 137 lg 2) [2].

The court takes into account, among other things, each parent's mental and financial readiness to raise the child, their emotional bond with the child, their dedication to caring for the child so far and the child's future living conditions (PKS § 137 lg 3) [2]. According to the Supreme Court, joint custody must be preserved as far as possible and may be ended only to the extent necessary to secure the child's interests; custody is assessed separately for different areas (RK 2-21-233/69) [9].

The parents can also agree on ending joint custody in family mediation, but only if the court has made an order referring them to family mediation (PKS § 137¹) [12].

If one parent has custody under a court decision, the other parent may apply for its transfer if the circumstances on which the decision was based have changed significantly, or for joint custody to be restored (PKS § 138 lg 1) [13].

How is the contact arrangement set?

Each parent has the duty and the right to personal contact with the child (PKS § 143 lg 1) [3] – including a parent without custody (RK 2-15-16111/116) [14]. A parent must refrain from anything that harms the child's relationship with the other parent (PKS § 143 lg 2) [3].

Before going to court, mediation must as a rule be attempted: a certificate that mediation failed is filed with the application (Code of Civil Procedure, tsiviilkohtumenetluse seadustik, TsMS § 560¹ lg 1) [15]. Mediation is not required if a parent has been violent towards the child or the other parent or there is another good reason; violence must be referred to in the application and another good reason substantiated there (TsMS § 560¹ lg 2) [15].

If the parents cannot agree, the court may not leave the contact arrangement unset by pointing to the parents' option to agree (RK 3-2-1-138-16) [16]. In the child's interests, the court may restrict the right of contact or end its exercise (PKS § 143 lg 3) [3] and order that the child meets the parent in the presence of a suitable third person (PKS § 143 lg 3¹) [3]. When contact is restricted, the decisive factor is not the child's wish but that contact is not in the child's interests and would harm the child's health and development (RK 2-15-16111/116) [14].

How does the court establish the child's interests?

In matters concerning a child, the court makes a decision based above all on the child's interests (PKS § 123 lg 1) [17]. The court personally hears a child who is capable of forming views (TsMS § 552¹ lg 1) [18] and at every stage tries to guide the parties towards resolving the matter by agreement (TsMS § 561 lg 1) [19]. A child of at least 14 years with sufficient judgement may appeal on their own against an order in a non-contentious family matter concerning their person (TsMS § 553 lg 1) [20].

What the law says

• „Lapsel on õigus isiklikult suhelda mõlema vanemaga.“ (translation: the child has the right to personal contact with both parents; PKS § 143 lg 1) [3] – contact is first of all the child's right.
• „Vanemate vaidluse puhul määrab vanema ja lapse suhtlemise korra vanema nõudel kohus.“ (translation: if the parents disagree, the court sets the arrangement for contact between parent and child at a parent's request; PKS § 143 lg 2¹) [3] – without agreement, the court decides.
• „Kui ühist hooldusõigust omavad vanemad elavad alaliselt lahus, otsustavad nad lapsega seotud olulisi asju ühiselt.“ (translation: if parents with joint custody live permanently apart, they decide important matters concerning the child jointly; PKS § 145 lg 1) [1] – separation does not let either parent decide alone.
• „Kohus muudab varem tehtud lahendi, kui seda nõuavad lapse heaolu püsivalt mõjutavad kaalukad asjaolud.“ (translation: the court changes an earlier decision if weighty circumstances with a lasting effect on the child's well-being require it; PKS § 123 lg 2) [17] – a decision on custody or contact is not forever.

What to do

1. Try to agree (PKS § 143 lg 2¹) [3]. An application for family mediation is filed with the Social Insurance Board (Sotsiaalkindlustusamet) and states, among other things, the other party's consent to take part (State Family Mediation Service Act, riikliku perelepitusteenuse seadus, RPLS § 7 lg 1) [21]. A parenting agreement (vanemluskokkulepe) approved by the Board is an enforcement instrument (RPLS § 12 lg 2 and 5) [22].
2. If no agreement is reached or the other party does not agree to take part in mediation, the Board issues a certificate that mediation failed (RPLS § 13 lg 3 and 4) [23]. Attach it to the application to set the contact arrangement (TsMS § 560¹ lg 1) [15].
3. File an application with the court: custody and contact matters are decided in non-contentious proceedings (TsMS § 550 lg 1 p 2) [24], but the court may also decide them in action proceedings if they are claimed there together with a divorce, the termination of a registered partnership agreement (kooselulepingu lõpetamine) or a maintenance claim (TsMS § 550 lg 2) [24].
4. If the matter is urgent, apply for interim relief for the duration of the proceedings (TsMS § 551 lg 1) [25]. According to the Supreme Court, interim relief as a rule does not decide the matter itself: ending custody partly or fully in this way is justified only to remove a danger to the child's well-being, not when the parents, after moving apart, disagree about the child's future living arrangements or a move abroad (RK 3-2-1-159-15) [10].
5. If the contact arrangement is not followed, turn to a bailiff: a court order arranging contact with a child is enforceable immediately, regardless of whether it has entered into force, from the day it is notified to the persons it concerns, unless the court has set a later time (but no later than its entry into force) (TsMS § 562¹ lg 3) [26].

Frequently asked questions

Must a parent without custody pay maintenance?

Yes. „Ülalpidamiskohustust ei mõjuta muudatused hooldusõiguses.“ (translation: changes in custody do not affect the maintenance obligation; PKS § 96 lg 1) [27]. Joint custody also does not prevent the parent raising the child from suing the other parent for maintenance (PKS § 120 lg 4) [28].

Can the child decide where to live?

The court hears the child (TsMS § 552¹ lg 1) [18]. An application for sole custody is not granted if a child of at least 14 years objects (PKS § 137 lg 2) [2]; otherwise the court decides on the basis of the child's interests (PKS § 123 lg 1) [17].

Do I have the right to information about the child?

A parent may demand from the other parent information about important circumstances concerning the child's person and property, if this is not contrary to the child's interests (PKS § 144) [29].

Can other close persons have contact with the child?

In the child's interests, the court may allow a third person to have contact with the child, or prohibit or restrict such contact (PKS § 143 lg 4) [3].

What if the other parent obstructs the contact arrangement?

If the obligated person obstructs enforcement, the bailiff, on the claimant's application, proposes to the court that the person be fined (Code of Enforcement Procedure, täitemenetluse seadustik, TMS § 179 lg 2) [30]. A first fine is 50 to 500 fine units, a repeated fine up to 800 fine units; arrest may be imposed instead of a second fine (TMS § 179 lg 2¹ and 2²) [30]. From 01.01.2027 the fine and arrest are governed by TMS § 179¹: on the claimant's application the bailiff proposes to the court that the obligated person be fined, a first fine is 50 to 500 fine units, a repeated fine up to 800 fine units, and arrest may be imposed instead of a repeated fine (TMS § 179¹ lg 1, 2 and 3) [31].